“Orphan Works” Legislation Introduced in the House and Senate

April 25, 2008

On April 24, 2008, leading members of the Senate and House Judiciary Committees introduced bipartisan, bicameral legislation (H.R. 5889, S. 2913) to preserve so-called “orphan works” – works that may be protected by copyright, but whose owners cannot be found. Potential users of orphan works often fail to display or use such works out of concern that they may be found liable for statutory damages, amounting to as much as $150,000.

The legislation would enable users to exhibit orphan works if, after a thorough, documented search, the copyright owners are unable to be located. The legislation outlines the criteria for such a search, and provides for court review to determine if a search has been adequate and done in good faith. If the copyright owner later emerges, the user must pay reasonable compensation to the owner. The bill also includes provisions to further protect owners of these orphaned copyrights, should any user exhibit bad faith.

The legislation was introduced in the Senate by Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. Orrin Hatch (R-Utah), a senior member and former chairman of the panel, and in the House by Rep. Howard Berman (D-Calif.), chairman of the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property and Rep. Lamar Smith (R-Texas), ranking member of the House Judiciary Committee. The bill is co-sponsored in the House by Judiciary Committee Chairman John Conyers (D-Mich.) and Rep. Howard Coble (R-N.C.).